People v. Lindsey , 2013 IL App (3d) 100625 ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Lindsey, 2013 IL App (3d) 100625
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DeANGELO LINDSEY, Defendant-Appellant.
District & No. Third District
Docket No. 3-10-0625
Filed July 30, 2013
Held Defendant’s conviction for first degree murder arising from an attempt to
(Note: This syllabus rob a convenience store was upheld over his contentions, inter alia, that
constitutes no part of the trial court improperly ruled that his juvenile adjudication for
the opinion of the court residential burglary could be used for impeachment and that a photograph
but has been prepared of the victim’s body was improperly disclosed to the jury, since the trial
by the Reporter of court’s erroneous ruling that the adjudication could be used for
Decisions for the impeachment was harmless because the adjudication was not used by the
convenience of the State for impeachment, but, rather, defendant introduced the adjudication
reader.)
to support his defense and the probative value of the photograph
outweighed any prejudice.
Decision Under Appeal from the Circuit Court of Peoria County, No. 09-CF-618; the
Review Hon. James E. Shadid, Judge, presiding.
Judgment Affirmed in part and vacated in part; cause remanded.
Counsel on Melissa Maye (argued), of State Appellate Defender’s Office, of Ottawa,
Appeal for appellant.
Jerry Brady, State’s Attorney, of Peoria (Terry A. Mertel and Mark A.
Austill (argued), both of State’s Attorneys Appellate Prosecutor’s Office,
of counsel), for the People.
Panel JUSTICE HOLDRIDGE delivered the judgment of the court, with
opinion.
Justice Schmidt concurred in the judgment and opinion.
Justice McDade dissented, with opinion.
OPINION
¶1 Following a jury trial, the defendant, DeAngelo Lindsey, was convicted of first degree
murder and sentenced to 52 years’ imprisonment. The defendant asks us to reverse his
conviction and remand for a new trial, arguing that the trial court erred by: (1) ruling that the
defendant’s juvenile adjudication for residential burglary could be used to impeach him at
trial; and (2) allowing a crime scene photograph of the victim’s body to be published to the
jury.
¶2 In the alternative, the defendant asks us to remand for resentencing. He argues that his
sentence was excessive and improper because the trial court failed to take into account the
defendant’s youth, his background, his relative lack of culpability, and his potential for
rehabilitation. In addition, the defendant maintains that we should vacate the $200 DNA
analysis fee imposed by the trial court because the defendant had previously given a DNA
sample and paid the DNA analysis fee after his prior juvenile adjudication.
¶3 FACTS
¶4 On May 27, 2009, Anil Dhingra was shot to death at the Gas USA station at the corner
of Prospect Road and McClure Avenue in Peoria. The defendant was charged with first
degree murder in violation of section 9-1(a)(3) of the Criminal Code of 1961 (the Code) (720
ILCS 5/9-1(a)(3) (West 2008)). The indictment charged that the defendant, along with
codefendant Ali Evans, shot Anil Dhingra without legal justification while attempting to
commit the forcible felony of attempted armed robbery, thereby causing Dhingra’s death.
The codefendants’ trials were severed.
¶5 The defendant filed a motion to suppress the statements he made to police on May 31 and
June 1, 2009, which the trial court denied. During the hearing on the defendant’s motion to
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suppress, Detective Keith McDaniel of the Peoria police department testified that an
eyewitness had identified Evans as one of two black men fleeing the Gas USA station (where
the murder occurred) at the time of the offense. McDaniel also testified that, after Evans was
arrested, he identified the defendant as the other participant in the crime. Evans initially
claimed that the defendant had shot Dhingra. However, during a subsequent interview, Evans
maintained that he (Evans) was the shooter.
¶6 During the defendant’s trial, the State called Julie Fitzsimmons, who lived at the corner
of Prospect and McClure in Peoria. Fitzsimmons testified that, at approximately 7:30 p.m.
on the evening of May 27, 2009, she spoke with Dhingra at the Gas USA station. She went
home and was about to attend a meeting across the street when she heard police sirens and
saw police cars blocking the street and parking in the Gas USA parking lot.
¶7 The State also called two witnesses who discovered Dhingra’s body before the police
arrived. Robert Mister testified that he and his friend, Deontray Rutherford, went to the Gas
USA station that night to buy gas and get some snacks. When they walked into the store, they
found the clerk lying behind the counter, either dead or unconscious. They went outside and
called 9-1-1. After approximately five minutes, the police arrived.
¶8 John Clancy testified that he lived across the street from the Gas USA station and that
he had known Dhingra for about nine years. He stated that Dhingra had just purchased the
gas station a few weeks before he was killed. On the night of the murder, Clancy had gone
next door for a cup of coffee when he heard someone say that something was wrong with the
man at the gas station. Fearing that Dhingra was ill or had a heart attack, Clancy ran to the
gas station. Clancy stated that, when he went inside the store, he saw Dhingra lying on the
floor covered in blood and showing no signs of life. One of the two black men waiting
outside the store had already dialed 9-1-1. Clancy stayed on the phone with dispatch until the
police arrived.
¶9 Peoria police officer Derek Harwood was the first police officer to arrive on the scene.
Harwood testified that, when he arrived at the Gas USA station on the night of the shooting,
four males were waiting outside. They told Harwood that the victim was inside the store.
Harwood went inside and found Dhingra lying on the floor behind the counter. A photograph
showing Dhingra lying where he was shot and covered in blood was published to the jury.
Harwood testified that Dhingra had blood coming from his head and mouth, and it appeared
that he had been shot. Another officer checked for a pulse and confirmed that Dhingra was
dead. An ambulance arrived, and an emergency medical technician declared Dhingra dead
on the scene.
¶ 10 Following Harwood’s testimony, defense counsel objected to the publication of the crime
scene photograph to the jury. He argued that the photograph was more prejudicial than
probative because it showed Dhingra bent at an awkward angle and showed Dhingra and the
surrounding area covered in blood. In response, the State argued that the photograph was
admissible because it was not a closeup and it illustrated Mister’s and Harwood’s testimony
regarding what alarmed them and what prompted Mister to call 9-1-1. The court ruled that
the photograph was admissible.
¶ 11 The State then called Sheanniya Sherman. Sherman testified that, on the evening of May
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27, 2009, she was driving with her father and brother when she pulled into the parking lot
of the Gas USA station in order to turn around. She saw two young black males exiting the
store rapidly. Both of the men began running away. The first male was wearing a black
hoodie with the hood pulled up and something like a bandana tied around his face. He had
a gun in his hand. Sherman could not identify this man because his face was covered.
Sherman recognized the second man as Ali Evans. She knew Evans because a friend of hers
had been involved in a prior altercation with him. Evans had a bag in his hand and was
laughing. Sherman stated that she was certain that Evans was the person she saw leaving the
store. She later picked Evans out of a mug shot book and identified him in an in-person
lineup. She testified that she was “positive” that the other man she saw leaving the gas
station had a gun in his hand, not a cell phone. Sherman’s father, Larry Bush, gave
substantially similar testimony.
¶ 12 Dr. John Scott Denton, a forensic pathologist working for the Peoria County coroner,
performed an autopsy on Dhingra. Denton testified that Dhingra had sustained five gunshot
wounds: two to the head, two to the chest, and one grazing wound to the back of his left
index finger. Four bullets were removed from Dhingra’s body. Denton determined that the
cause of death was multiple gunshot wounds.
¶ 13 On May 31, 2009, Detective Mike Hermacinski went to the defendant’s sister’s
apartment pursuant to a search warrant. The defendant’s sister signed a consent to search the
residence. In one of the bedrooms, Hermacinski found a knife and a .22-caliber revolver
under a bed mattress. Timothy Wong of the Peoria police department crime scene unit
processed the knife and gun for fingerprints. Although Wong recovered no fingerprints on
the knife, he recovered a latent thumb print on the right side of the gun. Wong determined
that the thumb print on the gun came from the defendant. The gun was admitted into
evidence.
¶ 14 Linda Yborra of the Morton forensic science lab for the Illinois State Police fired the
revolver recovered from the defendant’s sister’s apartment and determined that three of the
four bullets recovered from Dhingra’s body matched the rifling pattern associated with that
gun. Although the fourth bullet had the same class characteristics, there were insufficient
specific indicia to prove conclusively that it had come from the same gun.
¶ 15 Keith McDaniel, the Peoria homicide detective who investigated the case, testified that
Sherman had identified Evans as one of two males seen fleeing the Gas USA station, that
McDaniel spoke with Evans and continued investigating the crime, and that the defendant’s
name surfaced in connection with the crime.
¶ 16 The defendant turned himself in to the police on May 31, 2009. Later that day, he was
interviewed by McDaniel and Detective Walden. The interview was videotaped. A redacted
version of the videotape of that interview was played to the jury. In the video played for the
jury, the defendant was Mirandized and waived his Miranda rights. He admitted that he
knew Evans. He stated that, on the day of the murder, he and Evans had gone to the
defendant’s sister’s house and played video games. Later, they went to the Gas USA station.
The defendant only had a dollar and some change. While he was trying to decide what to
purchase, Evans pulled out a gun and pointed it at Dhingra, yelling “give me the shit,”
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meaning the money. Dhingra began reaching under the counter but, before Dhingra could
give Evans anything, Evans shot Dhingra multiple times. Afterwards, the defendant and
Evans left the store, jumped a fence, and ran back to the defendant’s sister’s house. When
the defendant asked Evans why he had shot Dhingra, Evans replied that he was “trigger
happy.” While at the defendant’s sister’s house, Evans and the defendant heard the police
arrive at the Gas USA station. Evans wanted to leave but the defendant discouraged him
from doing so, saying it was “too hot.” Accordingly, Evans stayed at the defendant’s sister’s
house for 2½ hours. Thereafter, the defendant and Evans left the house and went their
separate ways. The defendant stated that he went to his father’s house and that he had not
seen Evans since the night of the murder. He thought that Evans had the gun with him when
he left.
¶ 17 In the videotape played for the jury, the police officers told the defendant that both Evans
and an independent eyewitness had placed the defendant at the scene of the murder, and that
the independent witness stated that the defendant was holding a handgun in his hand as he
fled the store with Evans. They also told the defendant that a handgun and a knife had been
recovered from under a mattress at the defendant’s sister’s apartment. The defendant denied
putting the gun or the knife under the mattress.
¶ 18 On June 1, 2009, McDaniel and Walden questioned the defendant for a second time. This
interview was also videotaped, and a portion of the videotape was played for the jury. The
videotape showed that the defendant was given something to eat, and McDaniel began the
interview by telling the defendant that he owed him an apology. McDaniel read the defendant
his Miranda rights, and the defendant again waived them. The defendant stated that he just
wanted some money and that he and Evans were planning to rob Evans’s uncle of drugs and
money. Although the defendant initially denied that he and Evans planned to rob the Gas
USA station, he later admitted that, although the defendant thought they were there just to
see how busy it was, they ultimately intended to rob the gas station. The defendant admitted
that, before the robbery, he looked at Evans’s revolver because he was curious but gave the
gun back to Evans. He stated that the knife found under his sister’s mattress was his father’s
fishing knife and claimed it was not used in the robbery.
¶ 19 McDaniel testified that he was less confrontational with the defendant during the second
day of questioning. He admitted that, while questioning the defendant, he implied that there
was a surveillance camera on the scene, even though he knew that the Gas USA station had
no such equipment. He also implied that potential DNA and fingerprint evidence would
prove what had happened.
¶ 20 Following McDaniel’s testimony, the State rested. While admonishing the defendant
regarding his rights to testify and to not testify, the court asked the State’s Attorney and
defense counsel whether there were “any issues that [were] going to come up” regarding any
prior criminal offenses committed by the defendant. The State noted that the defendant had
a 2008 juvenile adjudication for residential burglary. The defense counsel argued that
evidence of a prior juvenile adjudication was not admissible against a testifying defendant.
The State acknowledged that a prior version of the Juvenile Court Act of 1987 (Act) (705
ILCS 405/5-150(1)(c) (West 2010)) barred such evidence but argued that the Act had been
amended to allow such evidence to impeach a testifying defendant subject to the traditional
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balancing analysis applied in People v. Montgomery, 47 Ill. 2d 510 (1971) (i.e., subject to
the requirement that the probative value of such evidence is not outweighed by its tendency
to unfairly prejudice the defendant). The State argued that, because the State would be using
the defendant’s prior juvenile conviction to impeach the defendant’s credibility if he testified,
it was admissible under the current version of the Act. The State argued that evidence of the
defendant’s prior juvenile adjudication would be admissible for impeachment purposes if the
defendant’s trial testimony contradicted the prior statements he gave to the police, even if he
did not “open the door” to the admission of such evidence by testifying that he has not
committed any crimes. After hearing arguments from the parties, the trial court agreed with
the State and ruled that the defendant’s prior adjudication could be used to impeach him if
he testified.
¶ 21 In response to the trial court’s ruling, defense counsel made the following statement:
“I would anticipate, *** assuming my client is still going to testify, which I think he will
be, that *** given the court’s ruling, I might be essentially fronting this juvenile
adjudication. And I just wanted to make it clear on the record the reason I would be doing
that now is based solely on the Court’s ruling; and I feel it’s absolutely necessary that I
explain that to the jury, which I otherwise would not be doing. It is my intention, just by
doing this, I am still trying to preserve, in the event that my client is convicted, his right
to appeal and address the ruling and the arguments that I have made as to why that
conviction should not come in. *** I am just concerned about preserving it on the record
as to explain why I would be fronting it so as not to waive that argument.”
¶ 22 The trial court responded, “I understand. That record has been made.” The trial judge
then confirmed that the defendant intended to testify.
¶ 23 On the stand, the defendant confirmed that he was 18 years old at the time of trial and 17
years old at the time of the offense. The defendant testified that, on May 27, 2009, he ran into
Evans, and the two decided to get together later at the defendant’s sister’s house. As they
were walking to the defendant’s sister’s house later that day, Evans talked about robbing his
uncle of his money and drugs. Evans had a firearm in his possession which he showed to the
defendant. It was the same gun that was admitted at trial.
¶ 24 The defendant testified that he and Evans left his sister’s house to go to the nearby
convenience store to buy some juice and a cigarillo, which they would use to smoke
marijuana. The defendant denied having a weapon. When they arrived at the Gas USA store,
the defendant asked Dhingra if he could buy a cigarillo and Dhingra refused to sell him one,
stating that he knew the defendant’s father and knew the defendant was too young to buy a
tobacco product. The defendant gave a dollar to Evans so Evans could buy the cigarillo for
him. He then walked down the middle aisle and looked at juice and candy. He heard Evans
say, “Give me that shit” and saw Evans pointing a gun at Dhingra. When the defendant asked
Evans what he was doing, Evans pointed the gun at the defendant and told him to “shut the
fuck up.” Evans then pointed the gun back at Dhingra and shot him as Dhingra was reaching
under the counter. The defendant claimed that, during that time, the defendant had his cell
phone in his hand. The defendant and Evans ran away from the store. The defendant claimed
that he was in shock and did not think about calling 9-1-1 at the time.
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¶ 25 The defendant and Evans then ran to the defendant’s sister’s apartment. While there, the
defendant snatched Evans’s gun away and asked Evans why he had shot Dhingra. According
to the defendant, Evans responded that he was “trigger happy.” They stayed at the apartment
for approximately two hours. The defendant then went to his father’s house.
¶ 26 When the defendant’s counsel asked the defendant during direct examination why he had
not called the police after he got away from Evans, the defendant initially responded
“[b]ecause I just witnessed a person get killed.” The following exchange then took place:
“Q. [Defense counsel:] At that point, [Evans] is no longer with you. So, you saw
somebody get killed, we understand that; you just testified to that. But you say [Evans]
is no longer with you. So why would you not call the police?
A. [Defendant:] Because I was scared. I had a warrant. And he just killed somebody
for no reason, so what make you think he won’t do it to me or to the people he know I
know. He knew where my family stayed.
Q. *** I want to clear this up. You just testified that you had a warrant out?
A. Yes.
Q. It’s true that in 2008, you were adjudicated a delinquent minor for the offense of
residential burglary; isn’t that right?
A. Yes, sir.
Q. And that warrant you are talking about, did it relate to that case?
A. Yes.
Q. *** [S]o those are the reasons then that you just told the jury that you didn’t call
the police at that point; is that right?
A. Yes.
Q. Now, I believe was it not until [May] 31st that you got in contact with the police?
A. Yes.
Q. Which would have been *** [a] few days later, right?
A. Yes.
Q. *** Tell us, first of all, why did it take you so long to contact the police?
A. One, I was scared because of my warrant. For two, because of what I just
witnessed. And for three, I thought *** it was just going to go away.”
¶ 27 The defendant testified that he ultimately decided to contact the police on May 31, 2009
(four days after the murder) because he found out that the police were looking for him. On
that day, the police picked him up and took him to the police station. He went to the
interview room and fell asleep. When the police began questioning him, they accused him
of shooting Dhingra. The defendant testified that he was upset by the questioning. The
following day, the police questioned him again. At the start of the second interview, the
police told the defendant that they owed him an apology, which made the defendant feel
better. The defendant testified that he then told the police that he and Evans went to the gas
station to “hit” it because he thought that was what the officer wanted to hear and he thought
it would help him get “leeway,” i.e., leniency in exchange for cooperating with the
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investigation. The defendant claimed that, in reality, he went to the gas station store to buy
something to drink and smoke, and he did not know that Evans had a gun or that Evans was
going to rob the store or shoot Dhingra.
¶ 28 The State did not present evidence of the defendant’s juvenile adjudication for residential
burglary. Neither the State nor defense counsel referred to the defendant’s juvenile
adjudication during closing arguments.
¶ 29 After closing arguments, defense counsel renewed his objection to the publication of the
photograph of Dhingra’s body at the scene of the crime. The trial court overruled the
objection. The jury found the defendant guilty of first degree murder.
¶ 30 The defendant filed a motion for judgment notwithstanding the verdict or a new trial,
arguing, among other things, that the trial court erred by: (1) allowing the crime scene
photograph to be published to the jury; and (2) ruling that the defendant’s prior juvenile
adjudication was admissible for impeachment purposes. Following a hearing, the trial court
denied the motion. The case proceeded to sentencing.
¶ 31 The State did not present any formal evidence of aggravation or mitigation during the
sentencing hearing. However, the State argued that the facts of the case warranted a lengthy
sentence. Defense counsel pointed out that, because the defendant would be required to serve
100% of any sentence imposed due to the nature of the offense, even a minimum sentence
would be lengthy. Defense counsel also stressed the defendant’s age, troubled childhood, and
lack of significant criminal history, and he argued that the defendant was less culpable than
Evans because Evans had confessed to pulling the trigger.
¶ 32 Before pronouncing sentence, the trial court stated that it had considered the presentence
investigation report, defendant’s statement, and the arguments of counsel. The trial court also
noted that it had considered the statutory factors in aggravation and mitigation, as well as the
nature, history, and character of the defendant. The court found in aggravation that the
defendant had a history of criminal conduct and had caused serious harm. The court also
found it necessary to craft an appropriate sentence in order to deter others from committing
similar crimes. The court stated that it did not find any mitigating factors. It observed that
some of the defendant’s family members were in court to support him and noted that the
defendant could have relied on them. The court stated that the defendant should have listened
to his family members, counselors, and probation officers, all of whom tried to help him find
the right way. The court also noted that the defendant had been unsuccessfully discharged
from drug and alcohol treatment and he did not participate in probation services. Although
the court repeatedly stated that it was mindful of the defendant’s young age, it concluded that
a lengthy sentence was necessary to protect society. The court concluded that it could not
take a chance on the defendant due to the seriousness of the offense and sentenced the
defendant to 52 years’ imprisonment. The court stated that “[t]his sentence is too late to
protect Mr. Dhingra, but it’s not too late to protect the rest of society.”
¶ 33 ANALYSIS
¶ 34 1. The Admissibility of the Defendant’s Prior Juvenile Adjudication
¶ 35 The defendant argues that the trial court erred in allowing him to be impeached with his
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prior juvenile adjudication for residential burglary. Although evidentiary rulings are usually
left to the sound discretion of the trial court (People v. Jackson, 232 Ill. 2d 246, 265 (2009)),
the admissibility of a testifying defendant’s prior juvenile adjudication depends upon the
proper construction of section 5-150(1)(c) of the Juvenile Court Act of 1987 (the Act) (705
ILCS 405/5-150(1)(c) (West 2010)) and its relationship with our supreme court’s holding in
People v. Montgomery, 47 Ill. 2d 510 (1971). We review these purely legal issues de novo.
¶ 36 This issue is controlled by our supreme court’s recent decision in People v. Villa, 2011
IL 110777.1 In Villa, our supreme court held that juvenile adjudications are admissible
against a testifying defendant for impeachment only in accordance with Montgomery and its
progeny. Villa, 2011 IL 110777, ¶ 41; see also People v. Rodriguez, 2012 IL App (1st)
072758-B, ¶ 50. Specifically, a defendant’s juvenile adjudication is admissible only if a
defendant opens the door to its admissibility by attempting to mislead the jury about his
criminal background while testifying. Villa, 2011 IL 110777, ¶ 45; Rodriguez, 2012 IL App
(1st) 072758-B, ¶ 50.
¶ 37 Here, the defendant did not open the door to the admission of his prior juvenile
adjudication under Villa. He did not attempt to mislead the jury about his criminal
background. To the contrary, the defendant mentioned his juvenile conviction for residential
burglary during his direct examination. He may have done so, at least in part, to blunt the
impact of the State’s anticipated evidence given the trial court’s prior ruling that the juvenile
adjudication was admissible. Villa instructs that, in such a case, the defendant cannot be said
to have opened the door to the admission of a juvenile adjudication. Villa, 2011 IL 110777,
¶ 50. Accordingly, the trial court’s ruling that the defendant’s prior juvenile adjudication was
admissible for impeachment purposes was error.
¶ 38 The State argues, however, that any error resulting from the trial court’s ruling was
harmless because of the strength of the evidence against the defendant and because the
defendant employed the juvenile adjudication to his advantage by using it to explain why he
delayed contacting the police after the murder. The defendant responds that the error was not
harmless because the defendant’s credibility was an important factor in the case. We agree
with the State.
¶ 39 The improper admission of evidence is harmless beyond a reasonable doubt if no
reasonable probability exists that the verdict would have been different if the evidence in
question had been excluded. People v. Lynn, 388 Ill. App. 3d 272, 282 (2009); Rodriguez,
2012 IL App (1st) 072758-B, ¶ 53. “When deciding whether error is harmless, a reviewing
court may (1) focus on the error to determine whether it might have contributed to the
conviction; (2) examine the other properly admitted evidence to determine whether it
overwhelmingly supports the conviction; or (3) determine whether the improperly admitted
evidence is merely cumulative or duplicates properly admitted evidence.” In re Rolandis G.,
232 Ill. 2d 13, 43 (2008); Rodriguez, 2012 IL App (1st) 072758-B, ¶ 53.
¶ 40 Applying these standards, we conclude that the trial court’s error in this case was
1
The supreme court issued its decision in Villa after the parties filed their opening briefs on
appeal but before the defendant filed his reply brief.
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harmless beyond a reasonable doubt. First, and most importantly, the State did not impeach
the defendant with his juvenile adjudication. The State did not attempt to introduce a
certified copy of the defendant’s juvenile adjudication. Nor did the State make any reference
to the juvenile adjudication during the defendant’s trial, either while cross-examining the
defendant or during its closing argument. The only reference to the prior adjudication at trial
came in the form of a passing reference made by the defendant during his direct examination.
That distinguishes this case from every case we know of in which a reviewing court has
found the erroneous admission of a defendant’s prior juvenile conviction to be reversible
error, and it strongly suggests that the court’s erroneous ruling in this case could not
reasonably have contributed to the defendant’s conviction. See, e.g., Rodriguez, 2012 IL App
(1st) 072758-B, ¶ 61 (holding that trial court’s error in admitting defendant’s prior juvenile
adjudication was harmless where, inter alia, “the State did not reference defendant’s juvenile
adjudication during closing or rebuttal argument and urge the jury to find defendant
incredible as the result of his adjudication”); see also id. ¶ 58.
¶ 41 Moreover, the possibility that the defendant’s passing reference to his juvenile
adjudication influenced the verdict is rendered even more remote by the fact that the
defendant used the juvenile adjudication to his advantage. Although defense counsel initially
told the trial court that he would be “fronting” the juvenile adjudication at trial “based solely
on the Court’s ruling,” that is not what actually occurred at trial. During the defendant’s
direct examination, the defendant did not merely raise the juvenile adjudication defensively,
i.e., he did not use it solely to blunt the impact of the State’s anticipated evidence against
him. Instead, he used it to explain why he waited four days after the murder to contact the
police.2 Thus, the defendant’s juvenile adjudication helped to explain away a very
incriminating fact, thereby bolstering his defense. For this additional reason, the trial court’s
erroneous ruling was harmless. See, e.g., People v. Collins, 85 Ill. App. 3d 1056, 1060 (1980)
(finding trial court’s error to be harmless where the defendant “adroitly turned the *** error
to his own benefit,” and noting that “[w]e cannot reasonably say that the error contributed
to the conviction when it appears to have been ably defused, and even taken advantage of,
by the defendant”).3
¶ 42 Moreover, there was overwhelming evidence supporting the defendant’s conviction. As
noted, the defendant was charged with first degree murder under an accountability theory.
This means that the defendant could be convicted if the jury found beyond a reasonable doubt
2
Specifically, the defendant testified that he did not contact the police after the crime, among
other reasons, because there was a warrant out against him in connection with the prior juvenile
adjudication.
3
We are not suggesting that the defendant waived the right to complain of the trial court’s
error because he used the juvenile adjudication to his advantage at trial. Our supreme court
foreclosed any such argument in People v. Williams, 161 Ill. 2d 1, 34-35 (1994). Rather, we are
merely suggesting that the fact that the defendant used the juvenile adjudication to his advantage
further bolsters the conclusion that the trial court’s error was harmless, particularly given that the
State did not use the adjudication to impeach the defendant in any way.
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either that: (1) the defendant shot Dhingra to death without legal justification while
attempting to commit an attempted armed robbery; or (2) Evans shot Dhingra to death
without legal justification while attempting to commit an attempted armed robbery, and,
either before or during the commission of the offense, the defendant aided, abetted, or
attempted to aid Evans in the planning or commission of the offense with the intent to
promote or facilitate the commission of the offense. 720 ILCS 5/5-2(c) (West 2008). Active
participation is not required to be found guilty under a theory of accountability, and a
defendant may be deemed accountable for the acts of another person if they shared a
common criminal plan or purpose. People v. Taylor, 164 Ill. 2d 131, 140-41 (1995). A
common purpose or design may be inferred from the following nonexhaustive circumstances:
(1) proof that defendant was present during the perpetration of the offense without
disapproval; (2) that he maintained a close affiliation with the principal after the commission
of the offense; (3) that he failed to report the crime; (4) that he fled from the scene; and (5)
that he destroyed or disposed of evidence. People v. Turner, 375 Ill. App. 3d 1101, 1104
(2007) (citing Taylor, 164 Ill. 2d at 141).
¶ 43 Here, the defendant testified that he was with Evans during the murder and that he and
Evans fled the scene of the crime together and ran to the defendant’s sister’s house, where
they stayed together for approximately two hours. During the defendant’s second videotaped
statement to the police, he admitted that he and Evans intended to rob the gas station.
Although he recanted the latter admission on the stand, there was other evidence suggesting
that the defendant had knowingly aided or abetted Evans in the commission of the robbery.
Sherman testified that, on the night of the murder, she saw Evans and an unidentified black
male running out of the Gas USA store together and that the unidentified man had a gun in
his hand. In both of his statements to the police and during his trial testimony, the defendant
admitted that he fled the scene of the crime with Evans and stayed with him at the
defendant’s sister’s house for several hours. In fact, in his first statement to the police, the
defendant said that he had discouraged Evans from leaving the defendant’s sister’s house
when the police arrived at the nearby crime scene because it was “too hot.” The defendant
did not contact the police about the crime until four days later, after he learned that the police
were looking for him. Moreover, the gun used to shoot Dhingra was found hidden under a
mattress in the defendant’s sister’s apartment, and it had the defendant’s fingerprints on it.
These facts strongly support an inference of the defendant’s guilt under an accountability
theory. See, e.g., Turner, 375 Ill. App. 3d at 1104 (defendant’s presence during the
perpetration of the offense, fleeing from the scene, maintaining a close affiliation with the
shooter after the crime, and failure to report the crime were suggestive of accountability); see
also Taylor, 164 Ill. 2d at 141; People v. Batchelor, 202 Ill. App. 3d 316, 331, 332 (1990)
(ruling that “[f]light from the scene of the crime *** may be evidence tending to show guilt
if flight appears motivated by the desire to avoid capture,” and holding that “[t]he fact that
[the defendant] fled with [the shooter] and later gave the gun to others to hide adds some
plausibility to the theory that his help began before the crime occurred”).
¶ 44 Further, even if the jury considered the defendant’s juvenile adjudication as impeachment
evidence, such evidence would have been “merely cumulative or duplicat[ive of other]
properly admitted [impeachment] evidence.” In re Rolandis G., 232 Ill. 2d 13, 43 (2008); see
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also Rodriguez, 2012 IL App (1st) 072758-B, ¶ 53. The defendant gave two separate
statements to the police that were inconsistent with each other and with the defendant’s trial
testimony in several material respects. The State used these inconsistencies during its closing
argument to argue that the defendant lacked credibility, that he had repeatedly tailored his
story as new incriminating information was presented to him, and that he was not telling the
truth when he testified.4 Thus, there was ample evidence to challenge the defendant’s
credibility aside from the juvenile adjudication, rendering the defendant’s passing reference
to the juvenile adjudication harmless. See, e.g., Rodriguez, 2012 IL App (1st) 072758-B, ¶ 62
(holding that trial court’s erroneous admission of the defendant’s prior juvenile adjudication
was harmless where, inter alia, the juvenile adjudication “was not the State’s only attack on
defendant’s credibility and his version of events” and the State had “presented additional ***
evidence to call into question the veracity of defendant’s testimony”).
¶ 45 Taking all of the above factors into consideration, we find the court’s error in ruling the
defendant’s prior juvenile adjudication admissible to be harmless beyond a reasonable doubt.
Under the unusual circumstances presented in this case, where the only reference to the
defendant’s juvenile adjudication at trial was made by the defendant and was used to the
defendant’s advantage, the evidence against the defendant was overwhelming, and the State’s
other, properly-admitted impeachment evidence rendered any impeaching effect of the
juvenile adjudication cumulative, there is no reasonable probability that the verdict would
have been different if the juvenile adjudication had been excluded. Lynn, 388 Ill. App. 3d at
282; Rodriguez, 2012 IL App (1st) 072758-B, ¶ 53.5
¶ 46 2. The Publication of the Crime Scene Photographs
¶ 47 The defendant also argues that he was denied a fair trial because the trial court allowed
a gruesome crime scene photograph of Dhingra to be published to the jury and viewed by the
jury during deliberations. The photograph showed Dhingra collapsed behind the counter of
the convenience store, fatally wounded. His eyes were open, his body was bent at a distorted
angle, and his head and face were covered in blood, as were the wall and floor behind him.
4
As noted, the State never mentioned the juvenile adjudication in attacking the defendant’s
credibility.
5
In reaching this conclusion, we have considered Villa, cited by the defendant in support of
his argument, and find it distinguishable. In Villa, our supreme court rejected the State’s argument
that the trial court’s error in admitting the defendant’s prior juvenile adjudication was harmless
where: (1) the defendant’s statement to the police was the only evidence implicating him in the
charged offense, rendering the credibility of his recantation of that statement at trial the crux of the
case; and (2) during the State’s closing and rebuttal argument, the prosecutor referenced the
defendant’s juvenile adjudication on three separate occasions and urged the jurors to consider it
when assessing the defendant’s truthfulness. Here, by contrast, the State never introduced or
referenced the defendant’s juvenile adjudication or used it to impeach the defendant. Moreover, as
noted, there was ample evidence suggesting the defendant’s guilt aside from the defendant’s
statement to the police.
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The defendant argues that there was no reason for the jury to see this photograph because it
was undisputed that Dhingra was shot several times and died from multiple gunshot wounds.
Moreover, a number of witnesses testified as to the condition that Dhingra was in when he
was discovered by the police and others who arrived on the scene. The defendant contends
that the photograph of Dhingra’s body added nothing to this testimony. Accordingly, the
defendant argues that the photograph should have been excluded because it “served only to
inflame the passions of the jury, such that any probative value was seriously outweighed by
its prejudicial nature.”
¶ 48 The decision whether to admit into evidence and allow the jury to view photographs of
a murder victim is committed to the sound discretion of the trial judge. People v. Bounds,
171 Ill. 2d 1, 47 (1995); People v. Kitchen, 159 Ill. 2d 1, 34 (1994); People v. Terrell, 185
Ill. 2d 467, 495 (1998). The trial court’s decision to admit or publish a crime scene
photograph will be upheld unless it is an abuse of discretion (Bounds, 171 Ill. 2d at 47), i.e.,
where the decision is arbitrary, fanciful or unreasonable, or where no reasonable person
would agree with the position adopted by the trial court. People v. Becker, 239 Ill. 2d 215,
234 (2010).
¶ 49 Photographs are properly admitted where they are used to establish any relevant fact,
even if the defendant fails to contest an issue or is willing to stipulate to a fact. Bounds, 171
Ill. 2d at 47; People v. Henderson, 329 Ill. App. 3d 810, 827 (2002). Among the valid
reasons for admitting photographs of a decedent is to prove the nature and extent of injuries,
the position, condition, and location of the body, the manner and cause of death, and to aid
in understanding the testimony of a pathologist or other witness. Kitchen, 159 Ill. 2d at 35.
Such photographs are admissible if relevant, even if they are gruesome and inflammatory,
so long as they are not so inflammatory that their tendency to cause unfair prejudice
outweighs their probative value. People v. Benford, 295 Ill. App. 3d 695, 698 (1998); see
also People v. Richardson, 401 Ill. App. 3d 45, 52 (2010) (“[e]ven a photograph that is
gruesome is admissible if it is relevant to corroborate oral testimony or to show the condition
of the crime scene”). Further, the admission of a photograph of a crime victim is not
unnecessarily cumulative simply because there is also oral testimony describing the victim’s
injuries. People v. Hefley, 109 Ill. App. 3d 74, 76 (1982); see also Richardson, 401 Ill. App.
3d at 50. In fact, one valid reason for admitting such a photograph is that it may corroborate
or aid the jury in understanding such testimony. Kitchen, 159 Ill. 2d at 35; Richardson, 401
Ill. App. 3d at 51-52; see also Benford, 295 Ill. App. 3d at 698 (ruling that photographs of
a homicide victim “are relevant and therefore admissible if they may aid the jury in
understanding testimony, despite the fact that the photographs may be cumulative of that
testimony”).
¶ 50 The trial court did not abuse its discretion in admitting the crime scene photograph at
issue here. The photograph corroborated Mister’s, Clancy’s, and Officer Harwood’s
testimony regarding the position, condition, and location of Dhingra’s body immediately
after the murder, and it helped the jury to understand that testimony. The photograph was
also relevant and admissible to help establish the cause and manner of Dhingra’s death. It
was proper for the State to introduce the photograph in its efforts to prove these matters at
trial even though they were uncontested. Bounds, 171 Ill. 2d at 47; Henderson, 329 Ill. App.
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3d at 827.
¶ 51 Moreover, the photograph accurately depicted the condition of Dhingra’s body at the time
of death. It was not posed or doctored in any way, and the defendant does not allege that it
contained any improper close-ups of Dhingra’s wounds. Nor was it an autopsy photograph.
Thus, the photograph cannot be characterized as unnecessarily gruesome or inflammatory.
See People v. Eckles, 83 Ill. App. 3d 292, 299 (1980). Indeed, during the trial, the defense
counsel had no objection to the photograph being admitted into evidence; he merely objected
to the publication of the photograph to the jury.6
¶ 52 For all these reasons, we cannot conclude that the probative value of the photograph was
outweighed by its tendency to cause unfair prejudice. The trial court did not abuse its
discretion in admitting the photograph.
¶ 53 3. Whether the Defendant’s Sentence Was Excessive
¶ 54 The defendant also argues that his 52-year sentence was excessive and should be reduced.
He contends that the trial court abused its discretion because it did not adequately consider
the defendant’s young age, his background, his lack of parental support since he moved to
Peoria, and his potential for rehabilitation, all of which, he claims, support a more lenient
sentence. Moreover, the defendant notes that he received a sentence that was only six years
shorter than Evans’s sentence, even though Evans was more culpable because he “confessed
to being the shooter.” Accordingly, the defendant asks this court to find that his 52-year
sentence was excessive and to reduce the sentence to a term “more commensurate with his
background, youth, and potential for rehabilitation.”
¶ 55 Supreme Court Rule 615(b)(4) grants a reviewing court the power to reduce a sentence.
Ill. S. Ct. R. 615(b)(4). However, our supreme court has ruled that this power should be
exercised “cautiously and sparingly.” (Internal quotation marks omitted.) People v.
Alexander, 239 Ill. 2d 205, 212 (2010). A reviewing court may not alter a defendant’s
sentence absent an abuse of discretion by the trial court. Id. A sentence will be deemed an
abuse of discretion where the sentence is “greatly at variance with the spirit and purpose of
the law, or manifestly disproportionate to the nature of the offense.” Id.; see also People v.
Stacey, 193 Ill. 2d 203, 210 (2000) (citing People v. Fern, 189 Ill. 2d 48, 54 (1999)).
¶ 56 The trial court has broad discretionary powers to fashion an appropriate sentence within
the statutory limits prescribed by the legislature. Fern, 189 Ill. 2d at 53. The trial court must
base its sentencing determination on the particular circumstances of each case, considering
such factors as the defendant’s credibility, demeanor, general moral character, mentality,
social environment, habits, and age. Id. “A reviewing court gives great deference to the trial
6
This fact further undermines the defendant’s argument that the publication of the
photograph was unduly prejudicial. See People v. Fierer, 151 Ill. App. 3d 649, 657 (1987) (finding
“no merit in [defendant’s] argument that showing the pictures to the jury by way of projecting them
on a large screen was any more prejudicial than distributing them to the jury in an 8- by 10-inch
format,” and concluding that “[n]either logic nor reason suggest[s] that the manner of presentation
is the determinative factor as to whether a photograph is highly prejudicial”).
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court’s judgment regarding sentencing because the trial judge, having observed the defendant
and the proceedings, has a far better opportunity to consider these factors than the reviewing
court, which must rely on the ‘cold’ record.” Id.; see also Alexander, 239 Ill. 2d at 212-13;
People v. Streit, 142 Ill. 2d 13, 19 (1991) (noting that “[a] trial judge is in a far better
position than an appellate court to fashion an appropriate sentence, because such judge can
make a reasoned judgment based upon firsthand consideration of such factors as the
defendant’s credibility, demeanor, general moral character, mentality, social environment,
habits, and age” (internal quotation marks omitted)). In considering the propriety of a
sentence, the reviewing court must “proceed with great caution and must not substitute its
judgment for that of the trial court merely because it would have weighed the factors
differently.” Fern, 189 Ill. 2d at 53; Alexander, 239 Ill. 2d at 213.
¶ 57 Upon reviewing the record, we find that the trial court did not abuse its discretion in
sentencing defendant to 52 years’ imprisonment. The record shows that the trial court
considered the appropriate factors in aggravation and mitigation. At the sentencing hearing,
the trial judge stated that he considered the presentence investigation report, the statutory
factors in mitigation and aggravation, the arguments of counsel, defendant’s statement, and
the nature, history, and character of the defendant in determining the defendant’s sentence.
The court found no statutory mitigating factors and three statutory aggravating factors: (1)
that the defendant had a history of prior criminal conduct; (2) that the defendant’s conduct
caused serious harm; and (3) that the sentence was necessary to deter others from committing
the same crime.7 The sentencing range for first degree murder is 20 to 60 years’
imprisonment (730 ILCS 5/5-8-1(a)(1)(a) (West 2008)), plus a mandatory 15-year
enhancement where, as here, the crime involved the use of a firearm (730 ILCS 5/5-8-
1(a)(1)(d)(i) (West 2008)). This mandatory enhancement applies to the defendant even if he
was convicted on an accountability theory. People v. Rodriguez, 229 Ill. 2d 285, 293-94
(2008); see also People v. White, 2011 IL 109616, ¶ 19. Thus, the defendant could have been
sentenced to a minimum of 35 years up to a maximum of 75 years in prison. After
considering all of the relevant factors, including the defendant’s young age and the severity
of the offense, the trial court concluded that a 52-year sentence was both appropriate and
necessary to protect society.
¶ 58 Contrary to the defendant’s argument, the trial court properly considered the defendant’s
young age, his background, the level of support that he received from his family, and his
potential rehabilitation. The court noted that some of the defendant’s relatives had come to
court to support him, and it stated that the defendant could have relied on them. The court
also observed that the defendant had been unsuccessfully discharged from a drug and alcohol
treatment facility, and it noted that the defendant could have listened to the counselors at that
7
In addition, although the court did not mention it, the defendant committed the offense
while he was on probation for a prior juvenile adjudication for a felony, and a warrant had been
issued for the defendant’s arrest due to two prior probation violations that the defendant had
committed (a curfew violation and criminal trespass to property). We do not rely on these facts in
affirming the defendant’s sentence, however, because the sentence may be affirmed based upon the
factors expressly considered by the trial court.
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facility and to his probation officer. Moreover, the court repeatedly stressed that it was
mindful of the defendant’s young age. However, as noted, the court concluded that a 52-year
sentence was necessary to protect society. In reaching this conclusion, the court expressly
considered the defendant’s potential for rehabilitation by noting that it did not know whether
the defendant would “get his life back on track” after a short prison term or whether violent
crime would “be [the defendant’s] life.”
¶ 59 In sum, the trial court made a reasoned judgment based upon a consideration of the
proper sentencing factors. We find no abuse of discretion. See Alexander, 239 Ill. 2d at 214
(affirming sentence where the trial court “adequately considered the appropriate factors”).
The defendant argues that the trial court did not give adequate weight to the defendant’s age,
background, his relative culpability in comparison with Evans, and his potential for
rehabilitation. However, “it is not our duty to reweigh the factors involved in [the trial
court’s] sentencing decision.” Id. Moreover, “ ‘[a] defendant’s rehabilitative potential ***
is not entitled to greater weight than the seriousness of the offense.’ ” Id. (quoting People v.
Coleman, 166 Ill. 2d 247, 261 (1995)). We therefore uphold the defendant’s sentence.
¶ 60 4. DNA Analysis Fee
¶ 61 The defendant argues that the trial court erred in requiring him to submit a sample of his
DNA for analysis and to pay the corresponding $200 DNA analysis fee under section 5-4-3
of the Unified Code of Corrections (730 ILCS 5/5-4-3 (West 2010)) because the defendant
had already submitted a DNA sample and paid the requisite fee following his prior juvenile
adjudication. The State confesses error on this issue. In People v. Marshall, 242 Ill. 2d 285,
303 (2011), our supreme court held that section 5-4-3 “authorizes a trial court to order the
taking, analysis and indexing of a qualifying offender’s DNA, and the payment of the
analysis fee only where that defendant is not currently registered in the DNA database.”
Thus, if a defendant has already provided a DNA sample and paid the DNA analysis fee after
a previous conviction or juvenile adjudication, a trial court’s order imposing an additional
DNA analysis fee after a subsequent conviction is void. People v. Leach, 2011 IL App (1st)
090339, ¶ 37. A defendant may challenge such an order for the first time on appeal because
a challenge to a void order is not subject to forfeiture. Marshall, 242 Ill. 2d at 302. Because
the defendant previously provided a DNA sample and paid the $200 DNA analysis fee, we
vacate the portion of the trial court’s sentencing order requiring him to submit an additional
sample and pay an additional fee. If the defendant has already paid this additional $200 fee,
we order that the money be refunded to him.
¶ 62 CONCLUSION
¶ 63 For the reasons set forth above, we vacate the portion of the trial court’s sentencing order
requiring the defendant to submit a DNA sample and to pay a DNA analysis fee. We affirm
the judgment of the circuit court of Peoria County in all other respects, and we remand for
further proceedings.
¶ 64 Affirmed in part and vacated in part; cause remanded.
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¶ 65 JUSTICE McDADE, dissenting.
¶ 66 The majority affirms defendants conviction of first degree murder (720 ILCS 5/9-1(a)(3)
(West 2008)). Because I believe the trial court’s error in allowing defendant to be impeached
with his previous juvenile adjudication was prejudicial, I dissent.
¶ 67 At the outset, I note that I agree with the majority that the trial court’s admission of
defendant’s prior juvenile adjudication was error. I disagree, however, that the error was
harmless.
¶ 68 The State’s case rested upon its ability to prove beyond a reasonable doubt that defendant
or Ali Evans shot and killed Anil Dhingra while attempting to commit the forcible felony of
attempted armed robbery. Defendant expressly denied shooting Dhingra.8 Instead, defendant
testified that he only went to the gas station to get “a cigarillo.” The consistent theme
throughout his testimony was that he was surprised and shocked to see Evans pull a gun on
Dhingra. The only evidence that defendant knew of the robbery was his second videotaped
statement where he initially denied that he and Evans planned to rob the gas station, but later
stated that although they were just there to see how busy the station was, they ultimately
intended to rob the station. At trial, however, defendant recanted his videotaped statement,
explaining that he only “told the detective what he want [sic] to hear.”
¶ 69 Here, the State’s case rested on defendant’s second videotaped statement. Likewise,
defendant’s case rested upon his recantation and denial of any knowledge of the robbery.
Thus, defendant’s credibility figured prominently in this case. Supra ¶ 56. In light of these
facts, it cannot be said that the trial court’s error in admitting defendant’s previous juvenile
adjudication was harmless. Supra ¶ 56.
¶ 70 For the foregoing reasons, I would reverse the judgment of the trial court and remand for
a new trial. I would not reach defendant’s remaining three issues.
8
I acknowledge that defendant’s thumb print was found on the handgun in question. I note,
however, that defendant testified that Evans gave him the gun after the shooting, which would have
resulted in defendant’s thumb print being on the handgun. Moreover, under the bill of indictment,
the State still needed to prove, beyond a reasonable doubt, that either defendant or Evans shot
Dhingra while attempting to commit armed robbery. Thus, it still needed to establish defendant
intended to rob the gas station.
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